Hughes v Transport Accident Commission

[2017] VCC 1233

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
(Not) Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-15-02870

ROBERT HUGHES	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

---

JUDGE:	S. Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	14-15 August 2017
DATE OF JUDGMENT:	4 September 2017
CASE MAY BE CITED AS:	Hughes v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2017] VCC 1233

REASONS FOR JUDGMENT
---

Subject:  Common Law
Catchwords:   Serious Injury Application
Legislation Cited:  Transport Accident Act 1986 (Vic)

Cases Cited:  Richards & Anor v Wylie [2000] VSCA 50; (2000) 1 VR 7

Judgment:  The plaintiff’s application is dismissed

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G Nash QC with Ms K Gladman	Nowicki Carbone
For the Defendant	Mr P Elliott QC with Mr P Gates	Transport Accident Commission

HER HONOUR:

1 Mr Hughes seeks leave under s 93(17)(a) of the Transport Accident Act 1986 (Vic) (‘the Act’) to bring proceedings for the recovery of damages in respect of an injury to the spine sustained in a transport accident on 24 February 2011 (‘the transport accident’).[1] At the time of the transport accident, the plaintiff was on a disability pension in relation to a back injury sustained at work between 1997 and 2001. He did not work from 2001 and was granted a Disability Support Pension in 2003. In 2008, to supplement that pension, he began working for Sriom Pty Ltd which traded as Pizza Hut, delivering pizzas in the evenings, up to 25 hours per week, for which he was paid around $360 per week. Prior to the transport accident, he was taking Tramadol for his back pain, and Zoloft for depression and had a number of other medical conditions (neck pain, epilepsy, arthritis in the hands and a heart condition) requiring medication. Mr Hughes says that as a result of the transport accident, he suffered an aggravation of the pre-existing, symptomatic degenerative changes in the cervical and lumbar spine, as well as an Adjustment Disorder with anxious and depressed mood and features of traumatisation. He has more back pain than before, some nightmares about the accident, is nervous driving, avoids the site where the accident occurred, and is no longer able to work delivering pizzas. For these reasons, he says that in terms of pain and suffering and pecuniary disadvantage the consequences of the accident-related aggravation of his lumbar spine condition meet the test of “serious injury”.

[1] The application under sub-paragraph (c) of s 93(17) of the Act was abandoned following the conclusion of the plaintiff’s evidence.

2       The defendant says that the transport accident was a minor one, resulting in only $1700 worth of damage to the plaintiff’s car. The plaintiff did not receive medical attention at the scene and returned to work. He saw his doctor the next day. The defendant says that the plaintiff suffered soft tissue injury only to the cervical and lumbar spine as a result of the transport accident by way of an aggravation of quite severe underlying degenerative changes in the cervical and lumbar spine. There is no neurological abnormality, evidence of non-organic aspects to his presentation, and, as at the date of the hearing, only a modest psychological reaction to physical injury. The defendant says that any work restrictions can be traced to his pre-existing back injury but that, in any event, the weight of medical opinion is that he remains physically capable of performing his pre-injury pizza delivery work.[2]

[2] See the opinions of Mr Robert Dickens and Dr David Elder at Defendant’s Court Book (DCB) 24-37 and 54-64

The plaintiff

3       The plaintiff’s evidence[3] may be summarised as follows.

[3] Plaintiff’s Court Book (PCB) 12-20

4       Mr Hughes, who is now 57 years old, moved to Australia in 1967 at the age of 8, completed Year 9 at school, and worked as a butcher, labourer, storeman (for 10 years), forklift operator and slaughterman (for 12 years). Prior to the transport accident, he had many health problems, including low back problems since the early 1990s which required treatment and hospital admissions. He sustained a back injury at work as a butcher between 1997 and 2001, and did not work because of his back condition between 2001 and 2008. He received a lump-sum payment from WorkCover in relation to the back injury. He suffered from neck pain from the late 1990s. He was on a Disability Support Pension from 2003 for the back injury. However, although he had back pain, anxiety and depression, he was able to return to part-time work in 2008 working 25 hours per week delivering pizzas, for which he earned around $360 per week. At the time of the transport accident, he was taking Tramadol for his back pain and Cymbalta for depression.

5       He was able to walk for half an hour each day and even to jog at times. He was able to indulge in his hobby of fixing cars after the back injury at work by working on lighter items, such as pieces of doors, lights and small engine components. He slept around 7 to 8 hours per night. He went to parties and to local football matches. He saw his large family quite often and was able to play backyard cricket. He would mow the lawns, vacuum, do the cleaning, and some cooking and gardening.

6       On 24 February 2011, when driving along Shaws Rd, Werribee, in the course of his employment, a car pulled out into his path. He swerved to avoid the car, into the path of an oncoming 4WD, then swerved back into his lane and collided with the car. He drove back to work, and saw his doctor the next day.

7       After the transport accident, he had physiotherapy until the insurer ceased funding for it, but continues to perform the home exercises he learned. He sees his doctor monthly. He takes Tramadol 200 mg at night and 100 mg in the morning. He is currently taking Mobic and Panadol Osteo to manage his pain. His neck and back pain is constant but varies in intensity. On a good day his neck pain will be 3-4/10, and his back pain is 4-5/10, but usually his neck pain is around 5-6/10 and his back pain in 7-8/10. His neck pain is aggravated by turning his head suddenly and by looking upwards. He gets aching pains radiating from his back into his right thigh, numbness and pins and needles in both legs which radiates down to the feet after he has been walking and lasts around 5 minutes. Walking on uneven ground, prolonged sitting or standing, bending or twisting or jarring aggravates his back pain. The range of movement in his neck and back is restricted. He is also upset, angry and frustrated at the ongoing high level of pain and the restrictions resulting from his physical injuries.

8       After the transport accident, he tried working in the pizza shop for a few hours, two days per week, but could not continue as his neck and back pain became severe, and driving exacerbated his anxiety. He stated that he felt unable to return to work because driving made him anxious and worsened his neck and back pain. He enjoyed the work, developed confidence and a social network through it, and is upset that his injuries prevent him from returning to work. He gets nervous driving, but does so for short periods each day. He can no longer mow the lawns, vacuum or do the cleaning because it aggravates his neck and back pain. He only cooks using the microwave. Standing in the kitchen for long periods or handling pots aggravates his pain. He cannot play backyard cricket with family, nor drives the long distances to their houses. He still goes out for coffee with friends most days to lift his mood but finds he has to move around and get up often to stretch his back. He mainly stays home, watches TV or plays videogames. He no longer goes to the football or to parties. He can walk around 15 minutes. He can no longer indulge his hobby of repairing cars. He sleeps only 5-6 hours per night and finds it hard to get comfortable due to his neck and back pain. He wakes during the night with pain and anxiety and may take hours to get back to sleep.

9       In cross-examination, Mr Hughes agreed that when he went on the Disability Support Pension for his back pain, he was unable to sit or stand for more than ten minutes and was taking Tramal 50 mgs four times per day. He said that after some years the pain eased, that in 2010 he was able to obtain an earthmoving licence and that he was looking for more work than he was doing in pizza delivery. He did a TAFE course for a job he was considering but his doctor told him it was unsuitable. He said that after the transport accident his back pain is worse and present more often, and he now takes 100 mg tablets of Tramadol. He said he was not taking anti-depressants regularly for the two years prior to the transport accident, but only took them from time to time.

10      Mr Hughes viewed extracts of video surveillance taken on 20 and 22 March 2013 as well as on 29 and 30 March 2016 which showed him, among other things, lifting a young boy above his shoulders, bouncing him on his knees, throwing him over his shoulders, bending across a table and taking the child into his arms, and turning his neck in the driver’s seat of his car. He agreed that he was able to lift the child without restriction, to socialise and to drive, even in the street where the transport accident occurred, but only about 1 km away from the accident site. He said that he could not return to delivering pizzas because getting in and out of his car repeatedly during busy periods aggravated his back pain. He agreed that on his earnings he was delivering 60 pizzas per week, but said that on weekend nights he sometimes made 30 pizza deliveries per night. He said that he is talking painkillers and anti-inflammatories every day.

In re-examination, Mr Hughes said that he had only returned to the accident site once, in 2011 and 2012, that he got nervous and started crying, and that he has not been there since. In relation to the activities performed with the child shown on the surveillance video, he said that the child was 2 years old and that after the activities he went home and took painkillers, although he then conceded that he did not have a specific recollection of doing so.  His daily pain relieving medication now comprises Palexia (100 mg twice daily), 8 Panamax and 2 Mobic. He does not see a psychologist anymore because he cannot afford to pay for sessions. He is able to drive to Stawell and Broadford but is nervous when doing so, and stops for breaks to ease his back and neck pain.

Kelly Moore

11      The plaintiff’s friend, Kelly Moore[4], has known the plaintiff for 10 years. Prior to the transport accident, the plaintiff would help her with babysitting, odd jobs, mowing lawns, and housework around the house. He was a relaxed driver, and a cheerful, patient person. Since the transport accident, he avoids picking up the kids, he is moodier, can be short-tempered with her children, appears nervous when driving, no longer babysits or helps her with chores. He stays overnight to break up his drive to her place.

[4] See affidavit dated 24 Juky 2017 at PCB 21

Radiology

12      CT scan of the lumbar spine on 23 June 1993[5] was reported as normal apart from possible “minimal canal stenosis at L4” which was of “questionable clinical significance”.

[5] PCB 27

13      X-ray of the cervical spine on 21 July 1999 was reported[6] as showing “narrowed interspace C5/6 and minimal at C4/5 also”.

[6] PCB 28

14      CT scan of the lumbar spine on 24 May 2001[7] revealed a moderate annual bulge at L4/5. MRI of the lumbar spine on 14 August 2002[8] confirmed the presence of that disc bulge but reported “no evidence of nerve root compression” at that level.

[7] PCB 29

[8] PCB 30

15      After the transport accident, X-rays of the cervical and lumbar spine on 28 February 2011[9] showed no fractures, moderate disc degenerative disease at C4/5 and C5/6 and mild facet joint osteoarthritic degenerative disease in the lower lumbar spine.

[9] PCB 31

16      CT scan of the lumbar and cervical spine on 11 March 2011[10] was reported with the following conclusion:

No acute cervical or lumbar pathology. Advanced C4/5 intervertebral disc degenerative change with high grade right foraminal stenosis at C4/5 and C5/6. Advanced left C2/3 and right C4/5 facet arthropathy.[11]

[10] PCB 32

[11] PCB 33

17      CT scan of the lumbo-sacral spine on 26 February 2014[12] was reported as normal.

[12] PCB 38

18      MRI scan of the cervical spine on 31 August 2014 was reported[13] with the following conclusion:

Degenerative spondylolisthesis of 3 mm at C3/4 mainly due to severe left sided facet joint OA. No marked central canal stenosis or cord compression. Foraminal narrowing is severe on the left side of the neck at C3/4 and C6/7 with left C4 and C7 nerve root compression. Mild foraminal narrowing on the left at C4/5 and C5/6 and moderate foraminal narrowing on the right at C4/5 and C5/6.

[13] PCB 39

19      MRI scan of the cervical spine on 26 May 2017[14] was reported with the following conclusion:

There is multilevel degenerative disc and facet joint disease as described and there is an anterolisthesis of C3 on 4. There is severe left-sided C3/4 foraminal narrowing. There is right sided C5 and C6 foraminal and left-sided C7 foraminal narrowing.[15]

[14] PCB 40

[15] PCB 40-41

Reports of treating practitioners

20      David Xuereb, psychologist, began treating the plaintiff in June 2011. He diagnosed the plaintiff with transport accident-related post-traumatic stress disorder in August 2011[16], and in August 2012 reported[17] that he could not, due to his psychological condition, undertake work that involved driving. He recommended ongoing psychological treatment. At the time of his last session on 7 June 2013[18], the plaintiff complained of persistent symptoms including  hypervigilance when driving, twice weekly nightmares and flashbacks to the transport accident, and avoiding driving in peak traffic or in busy areas and past the scene of the transport accident.

[16] PCB 42

[17] PCB 48

[18] See report of David Zuereb dated 11 March 2015 at PCB 50

21      On 29 September 2011, the plaintiff’s treating physiotherapist reported[19] that the plaintiff had a current capacity for work doing light duties with no deliveries and may be able to attempt to resume delivery when he had access to a suitable vehicle.

[19] DCB 72

22      In October 2011, the plaintiff’s general practitioner, Dr Saad Albarki, diagnosed accident-related PTSD and aggravation of degenerative changes in the cervical and lumbar spine.[20] On 17 July 2012, Dr Albarki noted[21] that the plaintiff was still receiving counselling and taking painkillers, was unable to deliver pizzas but was fit to do alternative jobs at the pizza shop. In July 2013[22] and February 2017[23], Dr Albarki expressed similar opinions.

[20] PCB 51

[21] PCB 53

[22] PCB 54

[23] PCB 55

Medico-legal reports

23      Dr Timothy Entwistle, psychiatrist, on 12 October 2011 noted[24] the plaintiff’s prior history, the slow progress made in psychological treatment in terms of managing his traffic phobia, and the aggravation of his pre-existing depressive symptoms. He diagnosed an Adjustment Disorder with Depressed and Anxious Mood with some features of traumatisation.[25] He considered that his current symptoms were “in part an aggravation of a pre-existing psychiatric condition with some new symptoms following the accident of a trauma related type with anxiety”.[26] He concluded that in time and after psychological treatment the plaintiff would have a capacity to return to his duties as a pizza driver.

[24] PCB 59

[25] PCB 63

[26] PCB 63

24      On 28 November 2014, Mr Robert Dickens, orthopaedic surgeon, reported[27] that as a result of the transport accident the plaintiff suffered a soft tissue injury to the cervical and lumbar spine without radiculopathy “in the presence of prior pathology”, marked in the cervical spine and to a lesser degree in the lumbosacral spine. He considered that the plaintiff should avoid activities which cause him discomfort but was capable of working part-time and resuming his work delivering pizzas. He felt that there would be a permanent level of incapacity much of which was due to prior pathology.

[27] DCB 30

25      Mr David Brownbill, neurosurgeon, reported on 3 February 2016[28] that examination showed restriction of cervical and thoraco lumbar spinal movements but no objective neurological abnormalities. He diagnosed a transport accident related soft tissue injury to structures about the neck and lower back “with aggravation of those degenerative changes giving rise to increased pain”.[29] He considered that the physical activity restrictions such as avoiding heavy lifting, forced spinal or cervical spine mobility, repeated bending, prolonged standing or sitting or holding his neck in a fixed position, “would have been applicable before the accident of February 2011” and would have restricted his earning capacity.[30]

[28] PCB 66

[29] PCB 70

[30] PCB 70

26      On 1 March 2016, Dr Nathan Serry, psychiatrist, conducted a psychiatric impairment assessment[31] of the plaintiff in which he concluded that the transport accident resulted in the development of “a separate PTSD and exacerbation of the previously well-controlled chronic adjustment disorder with anxious and depressed mood”.[32] He felt that one-quarter of the plaintiff’s current psychiatric impairment was “secondary and reactive to the physical injuries sustained in the accident”.[33] He recommended ongoing psychiatric care and felt that the plaintiff’s prognosis was guarded. However, on 28 June 2017, Dr Serry performed a further impairment assessment[34] in which he diagnosed a chronic adjustment disorder with anxious and depressed mood and features of traumatisation resulting from the transport accident.[35] He opined that one-third of the plaintiff’s current psychiatric impairment was secondary and reactive to the physical injuries sustained in the accident and the associated pain and limitations.

[31] PCB 78

[32] PCB 88

[33] PCB 89

[34] PCB 94

[35] PCB 99

27      On 29 March 2016, Mr Garry Grossbard, orthopaedic surgeon, reported[36] on examination that there was an extreme reaction to touch of the lumbar area and lower limbs. He concluded that the plaintiff had “longstanding degenerative issues affecting the cervical and lumbar spine” which had been associated with psychological issues, that he had not been able to manage returning to his minimal casual work after the transport accident.[37] On 29 June 2017, Mr Grossbard reported[38] that on examination, the plaintiff’s abnormal hypersensitivity to touch was less marked than previously. He concluded that the transport accident aggravated his cervical and lumbar degenerative disease, and that there was negligible prospect of his returning to active employment “for both physical and psychological reasons”.[39]

[36] PCB 74

[37] PCB 75.3

[38] PCB 75.1

[39] PCB 75.3

28      On 25 July 2016, Associate Professor Peter Doherty reported[40] that, on the history given, in the past, the plaintiff had a depressive disorder for which had taken antidepressant medication, but was no longer taking medication prior to the transport accident. The symptoms reported after the transport accident were consistent with the development of an adjustment disorder with some features of anxiety and traumatisation, but that the condition “is largely remitted”[41] and that no further psychological treatment was being undertaken. He considered that the plaintiff’s symptoms were currently mild, with “no current significant incapacity”[42], and that adjustment disorders tend to fade with the passage of time and respond to the treatment given. He felt that there was little difference made to the plaintiff’s domestic and leisure activities resulting from the transport accident, and that from the psychiatric perspective, the plaintiff’s prognosis was positive. He felt that the criteria for PTSD were not satisfied. He repeated this opinion in his second report dated 7 August 2017.[43]

[40] DCB 6

[41] DCB 16

[42] DCB 14

[43] DCB 21

29      On 27 September 2016, Mr Paul Kierce, orthopaedic medico-legal consultant, reported[44] that when examined the plaintiff exhibited “extraordinary abnormal pain behaviour”[45], and presented as a person suffering from severe pain. Given the apparently minor nature of the transport accident, Mr Kierce felt that the plaintiff may have suffered soft tissue injuries to his lumbar and cervical spine in the accident but that these injuries had healed and that his continuing symptoms “are mainly related to his development of a chronic pain syndrome and the extreme sensitivity and limitation of movement which he demonstrate cannot be explained on physical grounds”.[46] He felt that any limitation in work capacity related to his constitutional cervical and lumbar spondylosis. He repeated these conclusions in his second report dated 31 July 2017.

[44] DCB 38

[45] DCB 46

[46] DCB 48

30      On 6 February 2017, Dr David Elder, occupational physician, reported[47] that the plaintiff complained of continuing neck and low back pain, but did not report any sitting, standing or walking restrictions. Dr Elder noted “significant inconsistency between formal and informal examination of the movements of the cervical and lumbar spine”[48], with range of movements significantly increased when the plaintiff was distracted. Dr Elder concluded that the transport accident aggravated the cervical and lumbar spine dysfunction but that his condition appeared “to have been significantly complicated by psychological factors”.[49] He considered that a return to pizza deliveries was within the plaintiff’s physical capacity. The prognosis was for ongoing symptoms.

[47] DCB 54

[48] DCB 57

[49] DCB 58

FINDINGS AND REASONS

31      There was general expert agreement (from Mr Brownbill, Mr Kierce and Mr Dickens), and I therefore find, that the plaintiff suffered soft tissue injuries to the lumbar and cervical spine in the transport accident which aggravated his pre-existing and symptomatic degenerative changes in the cervical and lumbar spine (Dr Albarki, Mr Grossbard, Mr Dickens, Mr Kierce and Dr Elder).

32      There was also consensus among psychiatrists (Dr Entwistle, Dr Serry, Associate Professor Doherty) that the plaintiff suffers from an Adjustment Disorder which arose as a consequence to, or was exacerbated by, the transport accident. Dr Entwistle felt in 2011 that the plaintiff would recover and be able to return to work as a pizza driver. Associate Professor Doherty opined in 2017 that the condition was in remission, with only mild symptoms left which had little impact on domestic and leisure activities. Dr Serry stated that one-third of the plaintiff’s current psychiatric presentation was secondary to the pain and limitations resulting from the transport accident. Therefore, in considering whether the aggravation to the pre-existing cervical and lumbar spine condition caused by the transport accept meets the narrative test, I have taken into account the psychological upset[50] that the plaintiff feels due to the neck and back pain which results from the transport accident. 

[50]Richards & Anor v Wylie [2000] VSCA 50; (2000) 1 VR 7

33      A number of suitable qualified experts[51] (Mr Grossbard, Mr Kierce and Dr Elder) noted substantial non-organic presentation on examination. Mr Grossbard concluded that due to both physical and psychological factors, the plaintiff was unlikely to return to any employment, but really did not explain his conclusion. Mr Brownbill and Mr Kierce felt that any incapacity to return to work was not transport-accident related, but was due to pre-existing constitutional degenerative changes in the cervical and lumbar spine. Mr Dickens and Dr Elder concluded that the plaintiff does have a physical capacity to return to his pizza delivery work, while Dr Albarki felt that he can do a job which did not involve driving or aggravating his back and neck pain.

[51] I leave aside the opinion of Dr Serry, as he is not qualified to assess physical capacity for employment

34      I found the plaintiff to be a relatively straightforward witness. The extent of movements demonstrated in the video surveillance footage is consistent with his account to doctors, and his evidence that he is able to move freely, socialise, perform chores, watch television, drive regularly and for reasonable distances. I accept that he suffers neck and back pain since the transport accident, for which he takes more medication than before the transport accident, and I consider that the consequences he describes, as outlined at paragraphs 7 and 8 above, are considerable.

35      However, prior to the transport accident, he had a serious pre-existing back condition, which put him off work from 2001 to 2008 and resulted in his receiving Disability Support benefits from 2003, and which required ongoing treatment with daily ingestion of Tramadol. The transport accident was relatively minor and caused him soft tissue injuries to the cervical and lumbar spine. The weight of the expert evidence is to the effect that the plaintiff retains a physical capacity for some work, whether delivering pizzas or another kind of job that does not involve driving. In this regard, he is in a similar position as he was prior to the transport accident. On the whole of the evidence before me, therefore, I am not satisfied, looking at the picture of the plaintiff before and after the transport accident, that the extent of any aggravation of his pre-existing lumbar and cervical spine condition caused by the transport accident led to consequences, in terms of pain and suffering and/or pecuniary disadvantage, which are more than considerable when compared with other long-term impairments of the spine.

CONCLUSION

36      The plaintiff’s application is dismissed. I reserve the question of costs.